Sweeping DNA Collection Law Unsettles Federal Appeals Court

LOS ANGELES – A sample of Lily Haskell’s DNA is still stored in a California crime lab and available to be tested by law enforcement, even though she was never charged with a crime arising out of her arrest at a peace rally in San Francisco more than four years ago.

Now she is hoping a federal appeals court finally gives her — and other Californians — relief from a 2004 law that allows police to collect DNA samples from arrestees and then compare them to crime-scene samples in a state database without any formal charges being filed against those individuals or any judicial finding of probable cause that they had committed a crime.

“It’s a further serious erosion of our privacy rights,” said ACLU attorney Michael Risher, who is representing Haskell in a class action lawsuit she filed in October 2009 challenging the DNA Fingerprint, Unsolved Crime and Innocence Protection Act.

The law applies to “any adult person arrested or charged with any felony offense … immediately following arrest, or during the booking … process or as soon as administratively practicable after arrest.”

Prior to the passage of the law, California could only obtain DNA samples from individuals convicted of certain offenses. Haskell is seeking a court injunction that would require the filing of charges or determination of probable cause before a sample can be analyzed and processed.

In June, the U.S. Supreme Court upheld a similar Maryland law, finding in a case known as Maryland v. King that “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a police booking procedure that is reasonable under the Fourth Amendment.”

But at a hearing earlier this week, several judges on the 9th Circuit Court of Appeals appeared receptive to the ACLU’s arguments that the California law is distinguishable from Maryland’s because it takes DNA from people who are never charged with a crime or are discharged for lack of probable cause, and because it does not automatically destroy or “expunge” DNA samples and profiles after criminal charges have been determined to be unjustified.

“The [Supreme] Court says, ‘a valid arrest based on probable cause,’” Chief Judge Alex Kozinski, sitting on an 11-judge “en banc” panel, noted. “So that’s sort of the premise of the [King] ruling … We’re now dealing with cases in our state where there is no such determination. So the very basis of the court’s opinion, the starting point, is invalid.”

Fingerprints don’t carry biological information

The most resolute defender of the law was Judge Milan D. Smith, who wrote the February 2012 opinion in which a 2-1 majority of the 9th Circuit found it was constitutional. The court agreed to rehear the case “en banc” in July 2012.

“The [Supreme] Court made it very, very clear several times that DNA and fingerprints are of the same ilk constitutionally,” Judge Smith said. “The only difference is one is a more modern technology.”

But Judge Raymond C. Fisher soundly rejected that comparison.

“The fingerprint doesn’t carry with it all the biological information that’s associated with the full DNA,” he told California Deputy Attorney General Enid Camps. “And you’re saying that California can take that full DNA [from an arrested person], hold it in its custody … and there’s no remedy because of Maryland v. King.”

Risher sees the case as an opportunity for the courts to put a stop to what seems to be the inexorable expansion of the class of people from whom the government can take DNA samples, undermining privacy rights.

“This is more of a charging bull than a slippery slope,” he told MintPress in an interview.

The California Legislature passed the initial law in 1998 allowing the seizure of DNA from convicted felons without a warrant to assist law enforcement agencies “in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children.”

Since then, California law enforcement officials have identified more than 10,000 offenders by using their DNA. To build on those positive results, voters in 2004 approved Proposition 69 as an amendment to the law that expanded its scope to include arrested persons. Officers usually collect the DNA sample from a cheek swab and an arrestee can be charged with a misdemeanor for failing to cooperate with the collection.

Haskell was arrested March 21, 2009 at an anti-Iraq War rally for allegedly trying to free another protester who had been taken into custody. After being transported to jail, she was ordered to provide a DNA sample. She complied, not wanting to be charged with a misdemeanor for refusing to do so, and her sample remains to this day in storage at a lab.

“[C]ontinued enforcement of [the amended law] will result in the seizure, analysis, and indefinite retention of the DNA of tens of thousands of innocent Californians every year,” Haskell said in the class action suit, arguing that the “warrantless, mandatory, suspicionless” DNA testing of all felony arrestees violates their Fourth Amendment rights.

In December 2009, a trial judge, however, denied Haskell’s request for a preliminary injunction and the three-judge appeals court panel later affirmed that decision.

“DNA, as collected and used under the 2004 Amendment, is substantially indistinguishable from traditional fingerprinting as a means of identifying arrestees and, incidentally, tying arrestees to criminal investigations,” Judge Smith wrote for the majority.

An en banc panel initially heard the case in September 2012, but while the judges were deliberating, the Supreme Court came down with the King decision allowing warrantless seizure of DNA from arrestees under the restrictions included in the Maryland law.

“DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is ‘no more than an extension of methods of identification long used in dealing with persons under arrest,’” Justice Anthony Kennedy wrote.

The 9th Circuit then agreed to consider en banc whether California’s law is constitutional under King.

At this week’s hearing, the state’s attorney was unequivocal.

“This case begins and ends with Maryland v. King,” Camps argued, and any differences between the Maryland and California laws were not constitutionally significant. “I think the opinion is a very broad opinion” in which the Supreme Court “set a national standard,” she said.

“There is no basis for [Haskell’s] claim that Maryland’s law is constitutional but the California law is not,” Camps insisted.

Another step toward eroding privacy protections

But Judge Richard A. Paez, one of the more liberal judges on the court, seemed troubled that California allows testing of DNA samples from arrestees without a judicial finding of probable cause.

“So as long as you’re arrested, taken to the [police] station and booked, that’s it?” he asked.

“Right,” Camps responded.

“The bottom-line of what you’re saying is that … once they’ve had a swab taken, the state is free to go ahead and analyze it and process it,” Judge Fisher, a generally moderate appointee of President Clinton, interjected.

After Judge N. Randy Smith noted that judges in California have discretion as to whether to expunge DNA information from the state database, whereas the Maryland law provides for automatic expungement, Judge Kozinski, who is well-known for his libertarian leanings, zeroed in on that difference between the states’ laws.

“The judge could say ‘No’ and that would be the end of it, true or false?” he asked Camps.

“Correct,” she replied. “That is a non-appealable decision.”

“There wouldn’t have to be an explanation, you wouldn’t have to know why” expungement was denied, Kozinski continued.

“We would assume that the court would follow the statutory criteria,” Camps said.

The often acerbic Kozinski jumped on that comment.

“You can assume anything you wish,” he said. “The fact is you wouldn’t know.”

The court’s veteran liberal, 90-year-old Judge Harry Pregerson, then summed up the ominous implications of the case.

“We’re in a new age of being able to not only identity people [from DNA] but to identify who their relatives were, their mental problems, physical problems,” he said. “The whole picture is there. It’s a very serious intrusion.”

The ACLU’s Risher has expressed similar concerns, calling the King decision a “serious blow to genetic privacy” that goes against decades of Fourth Amendment precedent that “makes it clear that the police cannot search an individual for evidence of a crime … without a specific reason to think that the search will actually uncover some evidence.

If the 9th Circuit, he told MintPress, allows the testing of DNA from people “who were at a political protest, things got a bit crazy; police swept them up and no charges were filed,” that would be “another step” toward eroding privacy protections.

Before California amended its law, Risher noted, a wrongful arrest was “an unpleasant experience, but it didn’t have lasting consequences. Now it does. Your DNA is on file.”